Personal Injury Law Journal

Alisa C. Boll

aboll@stark-stark.com
609.895.7240

Alisa C. Boll is an Associate and member of Stark & Stark’s Workers’ Compensation Group. Prior to joining Stark & Stark, Ms. Boll worked as an Associate for the law firm of Sullivan Cunningham Keenan Mraz Oliver & Violando, LLP in Albany, NY. While there, Ms. Boll was responsible for preparing Trial Memoranda of Law and Appeals, preparing appeals to the Appellate Division, Third Department, attending depositions, oral arguments and attending regular hearings and trials before the Workers’ Compensation Board.

 

Video surveillance is allowed in workers’ compensation cases and is often used to make sure a petitioner is telling the truth about the extent of his injuries or the limitations he has as a result of his work injuries. If video surveillance shows a petitioner engaging in activities that he has told his doctors he can’t do, this might raise the issue of fraud.

The general rule about using surveillance video during a workers’ compensation trial is that its existence has to be indicated on the Pre-Trial Memorandum. The Pre Trial Memorandum is filled out by the parties and the Judge and lists all of the witnesses the parties will call at trial as well as the issues in dispute.

However, in the recent case, Louis Dubrel v. Maple Crest Auto Group, decided by the Appellate Division on January 30, 2012, the Respondent was able to introduce surveillance video after the petitioner testified. In this particular case, the petitioner testified that he had sustained permanent injuries to his neck and low back from an injury at work in February 2004. The petitioner testified that before his injury he was able to travel, go fishing with his kids, and ride off road motorcycles. The petitioner also testified that he was not able to trailer horses any longer. He had enjoyed a hobby of raising horses for harness racing but was no longer able to ride horses, train horses, trailer horses, or care for them. He and his brother still had horses but he said that he only participated “by brain”.

After petitioner testified, the respondent conducted an investigation with surveillance and determined that the petitioner was still very involved in harness racing. Surveillance showed the petitioner working on his farm, doing carpentry, taking care of animals, etc. In the video and according to the surveillance investigator, the petitioner was unimpaired in his activities of daily living. The petitioner was then presented with the videotape and informed that the employer was going to call the surveillance agent and the claims adjuster at trial.

The video was shown, over the objection of petitioner’s counsel. The adjuster testified about what she had discovered on the horse racing websites. The Workers’ Compensation Judge noted that one week before petitioner’s testimony in court, he was the driver of “Finest Firewater” in a qualifying race in Delaware. The Judge found that the statement that petitioner could no longer ride horses was purposely and knowingly false. He further found that it was clear from the context of the petitioner’s remarks that the statements were made to obtain workers compensation benefits fraudulently.

In their decision, the Appellate Division approved the inclusion of surveillance video obtained after the petitioner testified because it was “relevant to prove or disprove a fact in issue.”The Appellate Court found that the video surveillance were not “surprise witnesses” and the Compensation judge had not abused his discretion by letting that testimony into the case.  The Appellate Court ruled that although surveillance tapes made after the start of trial should generally be excluded, an exception arises where the employer could not be aware of the circumstances necessitating the surveillance before the start of trial.

 

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

I often hear clients complain that their boss was not nice to them or sympathetic about their injuries after an accident at work. This is usually the driving force that brings these clients into my office to file a claim following a work-related accident.

Unfortunately, there is no recourse when an employer is not being nice to you or not calling to check in on you after you are injured at work. The only benefits you are entitled to when you are hurt at work are: medical treatment for the injuries you sustained during the accident and workers’ compensation temporary disability benefits if the authorized treating doctor takes you out of work.

You may be entitled to a settlement of your workers’ compensation claim if there is medical evidence of a permanent residual effect of your injury. You are not entitled to any benefits for the pain and suffering you had related to the injury as these are not included in New Jersey workers’ compensation.

When you hire a workers’ compensation attorney to help you with your case, we are able to assist with all aspects of your claim. We can help you to get the medical care that you need and we will file a motion with the court requesting authorized treatment if it is not being provided by the insurance company for your employer. We will also help you to get a settlement of your claim by collecting your medical records once treatment has ended and sending you to an independent medical doctor for an evaluation. The opinion of that doctor will help us to negotiate a settlement of your case.

If you are interested in finding out what we can do to help you with your workers’ compensation case, please call one of the attorneys in our workers’ compensation group. We would be happy to offer you a free consultation in order to review your case and discuss your possible course of actions.      

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

If you have a work-related disability, and your employer’s workers’ compensation carrier denies you benefits or stops paying your workers’ compensation benefits, you may be eligible for temporary disability benefits.

Work related disabilities are not compensable under the Temporary Disability Benefits Law. These types of disabilities are covered by the Workers' Compensation Law.  If your disability or injury is work related, you should contact your employer and file a workers' compensation claim with their workers' compensation insurance carrier.

However, if you claim the disability is work related but your employer's workers' compensation carrier denies you benefits, or if the workers' compensation carrier stops workers' compensation payments, you may file a claim with the Division of Temporary Disability Insurance.  In order to be eligible for temporary disability benefits, you must meet all the requirements of the Temporary Disability Benefits Law, file a formal claim petition with the Division of Workers' Compensation and agree to reimburse the Division of Temporary Disability Insurance if you are awarded Workers' Compensation benefits.  A lien will be filed by the Disability Insurance Service to protect its subrogation rights against any subsequent workers’ compensation award. 

You have 30 days from the first day of disability in which to file your claim.  If your claim is received more than 30 days from the start of the disability, you must show good cause why the claim was not filed timely.  If good cause is not shown, benefits may be reduced or denied.

There is no set requirement as to how often you must see your physician.  However, to continue receiving temporary disability benefits you must be under the continued care of your doctor.  Periodically, forms will be mailed to you to obtain updated medical information.  Those forms must be completed by you and your physician and returned to this Division.

If you have been injured at work and have questions with regard workers’ compensation benefits in general or the issues discussed here, please contact me or any of our workers’ compensation attorneys for a free consultation.

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

New Jersey Workers’ Compensation allows for penalties for certain actions by the insurance carrier. For failing to follow the order of a Judge or failure to provide benefits under the Act, the Judge of Compensation can:

• Impose costs and simple interest on any monies due.
• An additional money penalty up to 25 percent;
• Fine the parties or their attorneys up to $5,000 for unreasonable delay or continued noncompliance;
• Close proofs;
• Suppress defenses;
• Exclude evidence or witnesses;
• Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.    

The general rule in New Jersey allows no direct action available to an injured employee against the employer, or against the employer's insurer, when the insurer does what is required under the Workers' Compensation Act and the carrier's insurance policy. Under normal circumstances, injured employees must pursue their exclusive remedies in the Division of Workers' Compensation, even when an employer, acting through its insurer, does not furnish necessary medical treatment when requested to do so by an employee.

This “general rule” is known as the exclusivity provision and it can be found in the New Jersey Workers' Compensation Act at N.J.S.A. 34:15-8.                                                    

Under the workers’ compensation statute, a separate tort action is allowed only when the employer committed an intentional wrong which requires actual intent or a “substantial certainty” that injury will occur as a result of its actions.

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

In a previous blog post I discusses wage reconstruction in workers’ compensation cases. I would like to point out that there is a slight difference in the way an injured workers’ wages is constructed when that employee is a part time employee with no full-time work. In this case, a judge of compensation must employ the principles of "fairness and equity" in determining if the circumstances warrant reconstruction of a part-time worker's wages. However, the Appeal court drew a distinction, as did prior cases, for part-time workers - concluding that reconstruction is appropriate when the "permanently disabling accident 'prevents or interferes with later full-time employment.'" (Citing Engelbretson v. AM. Stores, 49 N.J. Super. 19 (App. Div. 1957) aff'd, 26 N.J. 106 (1958).

Determining the 'rate' at which compensation should be paid is often the central issue in claims involving part-time workers. If a worker makes $100 a week as a part-timer, the permanent disability rate (the rate at which permanent disability benefits is paid) would be $70 per week. For an award of 20% of the leg (at the 2011 rates) a part-time worker earning $100 per week is due an award of $4,140.00. A full-time worker, earning wages greater than $290 per week, would be due a "full" statutory award of $13,293.00.

There are many instances where a judge of compensation is persuaded to "reconstruct" a part-time wage into a full-time wage. This results in a much-higher award (in our example, $4,140 versus $13,293). The Judge of Compensation can be persuaded to "reconstruct" wages to a full-time rate because the law allows for wages of a part-time employee may be reconstructed for purposes of fixing the rate for permanent partial disability in accordance with N.J.S.A. 34:15-37 based upon "diminished future earning capacity." 

However, there are equally many cases where the Judge will determine wage reconstruction is not appropriate. Here is an example of a case where wage reconstruction was rejected. In Gruzlovic v. Giovani's Trattoria, A-1519-08T1 (App. Div. Decided April 15, 2010), the appeals court reviewed the decision of a Judge of Compensation who had "reconstructed" part-time wages of a cafeteria worker, resulting in an increased award. The claimant in this case was a 76-year-old woman who worked nine hours per week, earning $10.50 per hour (average weekly wage of $94.50). During the thirteen years the claimant worked for the employer, she did not have or seek additional part-time employment. After the accident at work, the claimant no longer worked, stating simply, "I thought I had my share [of work]." The Judge of Compensation awarded the petitioner 25% permanent partial benefits, and "reconstructed" the rate so that the claimant received the "full" statutory award ($30,420). The Appeals Court overturned this ruling, and ruled that the claimant was only due an award on her part-time work - which would equate to 150 weeks of benefits payable at $66.15 per week, totaling $9,922.50.

In Gruzlovic, the Judge of compensation was reversed and the wage reconstruction was remanded for further proceedings. The Judge was asked to find out whether the accident and resulting residual disability "had any impact on the petitioner’s capacity or inclination to work full-time as opposed to part-time. Based on the fact that the claimant had only worked one day per week for the thirteen years leading up to the accident, the Appellate Court stated 'there is no basis for an inference" that she would have pursued other full- or part-time jobs "but for" her partial disability. The Appeals Panel further stated "when an inference of a loss of potential full-time employment attributable to the accident is not available from the evidence presented, principles of fairness and equity developed to compensate for that lost potential are not implicated and reconstruction of wages is not appropriate."  

The attorney’s at Stark & Stark are familiar with the issue of wage reconstruction. If you have questions about your case or would like to discuss your case in more detail, contact me for a free consultation here in my firm’s Lawrenceville, New Jersey office.     

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.